Violation Of The Right To Respect For Private Life Due To The Rejection Of The Lawsuit Filed For The Cancellation Of The Decision For The Hydroelectric Power Plant Project
Events
The environmental impact assessment (EIA) of the regulator and hydroelectric power plant (HEPP) project was requested from the Ministry of Environment and Urbanisation (the Administration) by a company engaged in the production of energy and electricity, and the Administration issued an EIA positive decision for the project.
The applicant filed a lawsuit at the administrative court for the cancellation of the EIA positive decision, the provisional acceptance offer document, the Provisional Acceptance Minutes and some administrative acts related to the said project. Applicant argued that the information provided in the EIA report did not reflect the truth and claimed that the EIA positive decision for the said project cancelled his environmental rights. The Administrative Court dismissed the lawsuit with respect to the request for the cancellation of the EIA positive decision and the provisional acceptance offer document and the Provisional Acceptance Minutes, and dismissed the lawsuit without examination with respect to the request for the cancellation of other administrative acts on the grounds that the aforementioned acts were not final and executable acts. Applicant appealed against this decision. The Council of State rejected the appeal on the grounds that the decision of the administrative court and the grounds on which it was based were in accordance with the law and procedure and there was no reason for its reversal, and decided to approve the aforementioned decision.
Allegations
The applicant stated that technically unfeasible commitments had been made for the project and that the expert report did not include the fact that the water committed to be released into the stream bed would not be released due to the reservoir built upstream of the project. Furthermore, the applicant stated that the pond planned to be built was not mentioned in the EIA report and that this issue was not taken into consideration by the courts of first instance. As a result, the applicant, who stated that a holistic environmental assessment was not presented due to incomplete judgement, claimed that the right to respect for private life was violated.
Court’s Assessment
First of all, it should be stated that EIA is a method that is used for realisation of investments and activities to be carried out for development and economic growth without destroying the nature and polluting the environment, affecting the decision-making process, thus producing options for decision-makers to make their decisions in a healthy way and determining the positive and negative aspects of these options. The main element to be protected by EIA is the environment and the assets in this environment.
Due to the complex nature of environmental decision-making processes, it is clear that public authorities have a wide discretionary authority. In this context, it is not the duty of the Constitutional Court to review the appropriateness of the decision taken by the public authorities regarding the construction and operation of a hydroelectric power plant in the area in question. However, it is important to determine whether the process includes safeguards that will serve to establish the necessary balance between the fundamental rights of the individual and the public interest in question, and in determining whether the stated obligation is fulfilled, it should be determined whether the procedural safeguards in the context of environmental issues are observed.
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In the concrete case, the applicant has no allegation that his effective participation in the project process was not ensured. The applicant stated that commitments were made regarding the project that could not be fulfilled, that the water committed to be released into the stream bed could not be delivered due to the reservoir built at the upper part of the project, and that this issue was not included in the expert report. The applicant also stated that the pond for which the tender was made was not mentioned in the EIA report and that these issues were not taken into consideration by the court of first instance.
Both the administrative sanction decisions imposed due to the release of water below the committed environmental flow amount related to the project and the determinations in the internal correspondence of the administrations that the committed amount of water was not released, show that in the concrete case, in the process of obtaining the EIA positive decision and conducting the related proceedings, an adequate and diligent examination was not carried out. Although the applicant has a fundamental objection that his downstream water rights will be interrupted and that the water committed to be released to the stream bed will not be released due to the pond planned to be built, the courts of first instance did not make any evaluation on these issues.
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In terms of the concrete application, it is understood that the applicant’s main allegations are important for determining whether the public authorities have established a fair balance between the interests of the applicant and the public. Despite this, the applicant’s allegations in question were not assessed by the courts of first instance.
As a result, it was assessed that the public authorities did not approach the case with due diligence, did not properly assess the public and individual interests at stake in the case and that the public authorities did not fulfil their positive obligations in the context of the right to respect for private life.
The Constitutional Court decided that the right to respect for private life was violated for the reasons explained
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